Suspected drug mule administered laxative by police loses human rights claim

Court dismisses inhumane treatment claim by Dutch woman cleared of drug trafficking after made to search for drugs through her own faeces

A Constitutional court has dismissed a case filed by a Dutch woman who claimed she was subjected to inhumane and degrading treatment by the police, after she was arrested in 2015 on suspicion of drug trafficking and made to search through her own faeces.

Jennifer Koster told the First Hall of the Civil Court in its Constitutional jurisdiction that she had been arbitrarily arrested and detained after arriving in Malta.

She claimed to have not been read her rights upon her arrest and had been taken to Mater Dei hospital where she was subjected to intimate searches “and other humiliating and degrading actions.”

Koster had spent a total of 16 hours under arrest and was then released without charge. She claimed this treatment breached her fundamental human rights and sued the State for damages.
The respondents, the State Advocate and the Commissioner of Police, denied that the arrest was arbitrary, saying a search warrant had been authorised by the Court of Magistrates on reasonable suspicion that her Maltese boyfriend was trafficking drugs and that she could have been an accomplice.

She had been arrested by plainclothes police at the Imriehel Industrial Zone together with her boyfriend, Carmel Zammit.

The police said she had been told she was suspectd of being a drug mule, and she was read her rights immediately, in English.

She had denied any wrongdoing and had cooperated with the police during her arrest. Her stomach was X-rayed and as the result was not clear, she was administered a laxative. The woman was then asked to search through her own faeces for the suspected substance, using a disposable plastic apron as a glove. No drugs were found.

She then filed constitutional proceedings shortly afterwards.

The court, presided by Mr. Justice Joseph R. Micallef, said the way the plaintiff’s requests were legally made meant that the State Advocate was not a legitimate defendant. There was nothing to show that he gave advice with regards to the actions which she said breached her rights, said the judge. Neither was it expected that the State Advocate provide a remedy to her should the court uphold her complaint.

Quoting from the Constitution and the European Convention, the judge said that these laws tied legality of an arrest with the existence of a justifying legal disposition. Therefore the first criteria which must be satisfied is that there is an express disposition at law covering the situation.
“From an examination of the facts… it emerges that the police had good enough reasons to keep the applicant under arrest. Contrary to what she had submitted, there were elements which at first glance pointed towards her and her partner Carmel Zammit.”

The police had received information that Zammit was involved in drug trafficking with Koster as an accomplice. She arrived from Holland, a destination well known for its tolerance of certain drugs. When she arrived, Zammit had driven to an industrial zone instead of to his home and all this led the police to suspect criminal activity was going to take place. The police had correctly first obtained an arrest and search warrant from the duty magistrate before arresting her, said the court.

Koster had also been held for less than the 48 hours laid down by law as a time limit for an arrest without charge. The inhumanity or otherwise of her treatment while under arrest did not depend on her subjective interpretation, said the judge.

The court did not doubt that at some points in her ordeal, the woman felt embarrassed. But it said that an intimate medical examination by a doctor of a different gender did not constitute inhuman or degrading treatment. Likewise, the police had reason to keep her under constant watch in case she excreted the ‘drugs’ and tried to dispose of them.

It could not be said that the defendants were to blame for the fact that the woman may have felt this way, observed the court.

Declaring the State Advocate non-suited as he was not a legitimate party to the proceedings, the judge declared that Koster had not suffered any breaches of her right against arbitrary or illegal arrest. The court also ruled that the Commissioner of Police had not subjected her to inhuman or degrading treatment.

The case was dismissed.